Xenos v R [2009] NSWCCA 64 | Case summary

11 March 2009 Xenos v R Judgment 1 GROVE J: I will ask Price J to deliver the first judgment. 2 PRICE J: Nicholas Xenos the applicant seeks leave to appeal against the sentence which resulted from the orders of Karpin DCJ on 11 February 1994 when her Honour cancelled an order of imprisonment to be served by way of periodic detention. The applicant complains that a miscarriage of justice arose as a result of the Judge's determination [not] to set a minimum and additional term in the absence of the applicant. 3 The appeal against the sentence imposed by McCredie DCJ has been abandoned. 4 On 18 June 1993 the applicant had pleaded guilty in the District Court to a single count on an indictment which alleged an offence of causing to be taken an overpowering drug with intent to commit an indictable offence contrary to s 38 of the Crimes Act 1900. The maximum penalty for this offence was penal servitude for 25 years. The indictable offence which it was alleged that the applicant had the intent to commit was sexual intercourse without consent. A charge of stealing had been included on a Form 2 pursuant to s 21 of the Criminal Procedure Act 1986. McCredie DCJ (the sentencing Judge) sentenced the applicant to a term of imprisonment for 12 months which was to be served by way of periodic detention commencing on 25 June 1993. 5 The applicant ceased complying with the periodic detention order after about 3 months when he left Australia and commenced living in Greece. 6 Following an application made on behalf of the Commissioner of Corrective Services for the cancellation of the periodic detention order, Karpin DCJ (the Judge) in the absence of the applicant cancelled the periodic detention order on 11 February 1994. The Judge issued a warrant for the apprehension and detention of the applicant to serve the outstanding balance of the sentence which had been calculated (including penalty periods) as being 45 weeks. 7 These orders were made pursuant to the Periodic Detention of Prisoners Act 1981. Section 25 of the Act made provision for the cancellation of a periodic detention order by the court that made the order. Section 25(3A) provided that a court, on an application by the Commissioner of Corrective Services, was obliged to cancel a periodic detention order, if it was satisfied that the prisoner had failed to report for three or more detention periods, and the prisoner did not have the benefit of any leave of absence or exemption. It seems that the Judge's order of cancellation was made pursuant to this provision. 8 Section 27 made provision for the effects of cancellation of a periodic detention order. Section 27(1)(c) provided that the "unexpired portion of the sentence to which the order applied shall be deemed to be a separate term of imprisonment imposed at the time of the cancellation". Section 27(4) provided that a court cancelling a periodic detention order could in its discretion direct that the unexpired portion of the sentence to which the order relates be taken to consist of a minimum term and additional term set under Part 2 of the Sentencing Act 1989 and make a parole order in accordance with s 24 of that Act. 9 When the order for periodic detention was cancelled no direction was made by the Judge pursuant to s 27(4). Enquiries have revealed that the proceedings were not transcribed. There is no indication in the available material why the Judge did not set a minimum and additional term. 10 The applicant returned to Australia on 22 October 2006. He was aware that he had failed to comply with the periodic detention order but was unaware of the order of cancellation and the issue of the warrant for his apprehension. He believed that he could complete his sentence by periodic detention. A solicitor who was instructed by the applicant and his father to enquire about the outstanding sentence obtained a copy of the applicant's criminal history which made no mention of the cancellation order and the issue of the warrant. Further enquiries were made by the solicitor who was informed that there were no outstanding warrants for the applicant. The solicitor told the applicant's father that his son did not need to do anything as there did not appear to be any outstanding warrants. The applicant had returned to Australia in 2003 to see his parents. During his stay which was for a few months no enquiries were made about his unserved periodic detention. 11 When the applicant attended a police station on 4 September 2008 to assist his mother concerning enquires about a motor vehicle, the warrant for his apprehension was executed and he was arrested. The applicant has been continuously in custody since that time. 12 The applicant complains of unfairness as a consequence of the periodic detention order being cancelled in his absence. He argues that had he been present submissions could have been made as to the setting of a minimum and additional term and as to special circumstances being found pursuant to s 5(2) of the Sentencing Act. He asks the Court to intervene and to re-sentence him after special circumstances are found. 13 The Crown contends that the original sentence imposed by the sentencing Judge was lenient. Whilst there may have been positive developments in the applicant's rehabilitation, the Crown submits that they do not necessarily warrant a reduction in the time which the applicant should serve. The Crown argues that the applicant has not established that any lesser sentence is warranted in law. 14 During submissions the parties made reference to a number of decisions of this Court on the Periodic Detention of Prisoners Act 1981. Although there is no appeal against the cancellation of a periodic detention order, this Court has the power to consider in respect of the sentence which was passed as a consequence of the cancellation whether a non-parole period should be set and its length: R v Wilson (1997) 93 A Crim R 301; R v Sajin [2003] NSWCCA 384; O'Meara v R [2008] NSWCCA 154. In Wilson Smart J considered at 309 - 310 the practical alternatives which a judge could pursue when the detainee was not present. The preferred course was for the judge to adjourn the hearing and order the arrest of the detainee. When the detainee was arrested and brought before the court, he could be heard on the cancellation of the order, the setting of the minimum and additional term and the making of a parole order. This was not the course adopted by the Judge. 15 In my respectful opinion, the Judge erred in proceeding in the absence of the applicant to impose a sentence and a miscarriage of justice occurred. In giving consideration to the question of re-sentence, the applicant is to be sentenced in accordance with the Crimes (Sentencing Procedure) Act 1999. 16 The facts of the offence for which the applicant was sentenced by McCredie DCJ were disclosed in a statement of facts which was tendered at the sentence indication hearing before the sentencing Judge and may be summarised as follows: The applicant and his co-offender met the victim at a Kings Cross night club on 28 June 1992. During the evening, he placed an amount of the drug benzodiazepine into a drink which he had bought for her. On finishing her drink, the victim noticed some white powder in the bottom of the glass. At this time she said she felt disorientated, drugged and hazy. She was escorted to the applicant's vehicle by both men where she said she "just crashed out". The victim re-called that the applicant drove the vehicle with the co-offender and herself in the back seat. During the journey she woke and found her handbag in the rear of the vehicle. The contents had spilled out. When she opened her wallet she found that $160 in cash was missing. This was the offence on the Form 2. She became angry and was allowed to get out of the vehicle. The victim then caught a taxi home and went to bed. The following day she reported the matter to police and was taken to hospital where tests were conducted. The urine sample tested positive for benzodiazepine. There was nothing to indicate that the victim had been sexually interfered with. 17 During a recorded interview the applicant told police that he had intended to have sex with the victim. He said the co-offender put the pill in the drink, stirred it up and he (the applicant) gave the drink to the victim. 18 The applicant was born on 10 March 1969 and at the time of the offence was 23 years old. His prior criminal history disclosed that on 12 August 1991 he had been placed on an 18 month good behaviour bond pursuant to s 558 of the Crimes Act for the offence of common assault. It is an aggravating factor of the offence that it was committed whilst the applicant was subject to conditional liberty. The applicant's offending is objectively serious. 19 A plea of guilty was entered at the first opportunity and admissions were made to police. There is no indication in the available material why a sentence of imprisonment to be served by way of periodic detention, which seems to have been a lenient sentence, was imposed. The Crown, however, did not appeal against the manifest inadequacy of sentence. 20 In an affidavit sworn 20 December 2008, the applicant recounts that he met his wife whilst in Greece and they married in September 2006. Upon his return to Australia he obtained employment as a motor mechanic and had decided to start his own mobile mechanic business prior to his arrest. Their first child was born on 1 July 2008. There is no suggestion that any further offences have been committed by the applicant either in Greece or in Australia. Whilst in Greece, he had been employed in the tourism industry and as a motor mechanic. When he returned to this country in 2006 he made enquiries concerning the completion of his sentence. He is now 40 years old. The applicant's subjective circumstances suggest that he has good prospects of rehabilitation and is unlikely to re-offend. 21 I propose that the Court should intervene to set a non-parole period and balance of term. I do not consider that I should find special circumstances so as to adjust the statutory ratio as the sentence is short and the seriousness of the offence would not be appropriately reflected in the non-parole period. 22 The following orders, in my opinion, should be made:

Xenos v R

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